Reporter Arrest for Recording Open Meeting in D.C. Highlights Troubling Use of Eavesdropping Laws

by Matthew L. Schafer

With crimes against journalists mounting abroad, even journalists in the United States are not free from governmental meddling.  Indeed, on June 22, police arrested two journalists who attempted to film a public meeting of the D.C. Taxi Cab Commission.

United States Park Police arrested Jim Epstein of Reason TV after he recorded the arrest of another journalist–Pete Tucker of TheFightBack.org.  In the video, Tucker, who was approached by police after he took a photo on his camera phone, questioned whether police could arrest him for reporting.

“Sir, you can’t arrest me for reporting,” Tucker said.  “I’m a reporter this is a public meeting.  This is a public meeting.  Sir, this is a public meeting.  This is a public meeting; I’m a reporter.”

In an interview with Fox News, Epstein indicated that he was arrested shortly after Tucker had been removed from the conference room.  Epstein later spent 5 hours in a jail cell next to Tucker.

“A few minutes later when I was trying to leave… the Park Police then were going after me to try to confiscate my iPhone and delete the video that I had just recorded,” Epstein told Fox News.

Both Epstein and Tucker were charged with disorderly conduct and unlawful entry/remaining.

This was not the first instance of friction between the Commission and reporters.  In March, now interim chairwoman Dena Reed attempted to prevent a local Fox News photojournalist from taping the meeting; she later allowed the taping after she spoke with the photojournalist privately.

Several months following the incident, and despite allowing the photojournalist to record the public meeting, the Commission changed its stance on recording.

“Without the express prior approval of the District of Columbia Taxicab Commission there shall be no television cameras, no video taping and no audio taping of DC Taxicab Commission proceedings,” a poster warned reporters.

Public meeting such as the Commission’s are governed by a new Open Meetings Law, which states that “all persons are entitled to full and complete information regarding the affairs of government and the actions of those who represent them.”

“The Commission is fully supportive of the Open Meetings Act, but open meetings must still be conducted in an orderly and productive fashion,” a statement from the Commission read. “[But,] the Open Meetings Act does not require that videotaping be allowed in Commission meetings.”

This most recent incident marks yet another instance of arresting reporters and more broadly arresting citizens who are recording police misconduct.  Indeed, although Tucker and Epstein were not arrested for violating an eavesdropping law, their arrests highlight the increasing use of state eavesdropping laws–twelve of which require the consent of both parties before anyone may begin recording–to prevent recording.

In practice, eavesdropping laws are currently being used in several states to either prevent citizens from recording public officials or to punish citizens when they do record public officials.  The rationale used by the government in such instances is that the public official did not consent to being recorded–a violation of the “two-party consent” rule in the eavesdropping law.

Just this month, for example, police arrested New York resident and citizen activist Emily Good after she refused to stop recording from her front yard a traffic stop in front of her house.  She was charged with “obstructing governmental administration.”

The ACLU of Illinois has filed suit in an attempt to prevent similar applications of the eavesdropping laws in Illinois–a state which requires the consent of both parties before one may record.  The case is on appeal after District Judge Suzanne Conlon ruled that the ACLU did not have standing to bring the case.

In its initial complaint, the ACLU argued:

The Act violates the First Amendment to the U.S. Constitution, as applied to the audio recording of police officers, without the consent of the officers, when (a) the officers are performing their public duties, (b) the officers are in public places, (c) the officers are speaking at a volume audible to the unassisted human ear, and (d) the manner of recording is otherwise lawful.

Whatever the eventual result of the ACLU case, it is clear that the eavesdropping laws are preventing citizens from shedding light on potential police misconduct.  Moreover, in those cases where a citizen or reporter does record police officers in public–or any public official in public–citizens are running the risk of being charged with felonies in some states.

Whether it is a reporter at a public meeting or a citizen recording a police officer in public, citizens in general should have the right to record and monitor the actions of public officials.  Indeed, this is the new reality–everyone is a reporter, and everyone has a camera.  Governments shouldn’t attempt to prevent citizen vigilance by throwing those most vigilant citizens in jail.